Case No.

80917

IN THE SUPREME COURT OF THE STATE OF NEVADA

Electronically Filed
Apr 17 2020 02:47 p.m.
GREGORY KERKORIAN, Elizabeth A. Brown
Clerk of Supreme Court
Petitioner,
v.

THE GOVERNOR OF NEVADA STEVE SISOLAK, THE DIRECTOR

OF NEVADA DEPARTMENT OF CORRECTIONS, CHARLES
DANIELS,
Respondents,

ANSWER TO EMERGENCY PETITON FOR WRIT OF

MANDAMUS RELIEF WITHIN 14 DAYS OR LESS REQUESTED
PURSUANT TO NRAP 27(e)

Respectfully submitted by:

AARON D. FORD
Nevada Attorney General
D. RANDALL GILMER (Bar No. 14001)
Chief Deputy Attorney General
Office of the Attorney General
555 E. Washington Ave., Ste. 3900
Las Vegas, NV 89101
702.486.3427
drgilmer@ag.nv.gov
Attorneys for Respondents

Docket 80917 Document 2020-14794

 Respondents, Governor Steve Sisolak (Governor) and Director

Charles Daniels (Director Daniels) (sometimes collectively referred to as

the “State”), in their official capacities,1 by and through counsel, Aaron

D. Ford, Attorney General of the State of Nevada, and D. Randall Gilmer,

Chief Deputy Attorney General, hereby provide this Court their response

in opposition to Petitioner’s Emergency Petition for Writ of Mandamus

Relief Within 14 Days or Less Requested Pursuant to NRAP27(e)

(Petition) as directed by this Court’s April 7 Order Directing Answer.2

I. INTRODUCTION

The Nevada Department of Corrections (NDOC) took early and

aggressive action with regard to the COVID-19 pandemic gripping the

world. As a result, as of the date of this filing, no NDOC inmate has been

diagnosed with COVID–19.

1 While the Petition is silent as to whether relief was sought against

the Governor and Director in their official or individual capacity, given
the nature of the relief, it appears Petitioner has brought only an official
capacity only. To the extent Respondents are incorrect, Respondents
request this Answer be considered an answer in both capacities, while
also reserving all other applicable defenses that could be raised by them
in their individual capacity, including but not limited to NEV. REV. STAT.
41.032 et seq.
2 Doc. 20–13091.

1
 These aggressive actions include (1) limiting transfers to and from

institutions, (2) screening all individuals for COVID-19 signs and

symptoms before entry and precluding entry should there be any

potential for concern or positive indicators present, (3) reminding

inmates of the need to adopt social distancing to the extent possible, (4)

ensuring proper cleaning and sanitization of the institutions, and (5)—to

the best of NDOC’s knowledge—being the first correctional department

in the nation to ban in-person access to all institutions state-wide to all

individuals except for employees and essential vendors.

Based on NDOC’s aggressive and proactive steps, other correctional

institutions throughout the nation have contacted NDOC executive

leadership team for input and guidance in how to control and limit the

potential impact of COVID-19.

In addition to taking these forceful first steps, the Governor and

NDOC’s executive leaders are constantly reviewing—and implementing

when appropriate—the Center for Disease Control (CDC), World Health

Organization (WHO), and other medical and governmental entity

guidelines regarding COVID-19.

2
 There is no guarantee this pandemic that has (as of the date of this

writing) currently infected at least 2,216,228 million people worldwide,

nearly 685,000 people in the United States, and over 3,400 people in

Nevada3 will not eventually reach within the walls of NDOC institutions.

However NDOC’s current safety and screening protocols have thus far

prevented COVID-19 from infiltrating Nevada’s prison population.

To be clear, as of the date of this response, there are no confirmed

COVID-19 cases within the NDOC prison population. And there have

only been seven confirmed cases of COVID-19 among correctional

officers. All of these individuals have been placed on sick or

administrative leave until the virus is no longer present in their system.

In addition, the individuals—staff and inmates—who had contact with

those correctional employees have been quarantined to minimize

potential spread of the virus.

The progressive steps NDOC has taken to protect employees,

vendors and inmates from the spread of COVID-19, coupled with the

ever-evolving nature of the recommendations provided by governmental

3See https://www.arcgis.com/apps/opsdashboard/index.html#/bda
7594740fd40299423467b48e9ecf6, last accessed April 17, 2020 at 1:48
p.m.

3
entities and medical experts establish why Petitioner Greg Kerkorian’s

(and Amicus’) request for release for himself and other inmates is not

required, justified, warranted or prudent.

The same is true with regard to why any alternative relief (as

sought by Amicus) is not prudent. The NDOC needs to be able to continue

its progressive and aggressive actions to stay ahead of this pandemic.

Any mandamus relief requiring the Governor or Director Daniels to act

or not act would by its nature limit the NDOC’s ability to remain agile

and flexible in taking recommended steps to prevent (and if necessary,

limit) a COVID-19 outbreak within the NDOC.

The Governor is well aware of the protective protocols and safety

steps the NDOC has and continues to take in combatting COVID–19. As

the Kerkorian and the Amicus correctly note, the Governor, just like

Director Daniels and the NDOC, has been proactive in fighting COVID–

19. The NDOC’s policies have been responsive to national guidelines, but

also take into account the unique situations of each correctional

institution.

The Governor has not hesitated to use the discretionary emergency

powers bestowed upon his office to issue Emergency Declarations and

4
Orders designed to promote and protect the health, safety and welfare of

all Nevadans. The use of this discretionary authority has been anything

but arbitrary and capricious. Rather, it has been tailored narrowly where

necessary and broadly when needed. Should further discretionary

determinations be required, the Governor stands ready to implement

those emergency measures.

What is clear is those emergency measures are for the Governor to

implement. The people of the State of Nevada, in its wisdom, vested

emergency powers with the Governor—not the Legislature nor the

Judiciary. Separation of Powers must be honored.

Mandamus is inappropriate.

5
 II. SUMMARY OF WHY MANDAMUS SHOULD BE DENIED

Mandamus4 is not appropriate procedurally, factually or legally.

Procedurally, the Petition is not ripe for this Court’s review as

Kerkorian specifically relies on factual assertions, analogies, and out of

state developments in an effort to gain his freedom. These “factual”

arguments must be decided by the district court as this Court held in

Round Hill Gen. Improvement Dist. v. Newman.5 This is especially true

given Kerkorian’s failure to provide this Court with any of the factual

circumstances relating to his specific confinement conditions.

Factually, Kerkorian is housed by himself. The cell has its own

toilet and sink. His cell is sanitary. These undisputed facts establish

Kerkorian’s ability to practice social distancing and debunk his general

assertion that he is more at risk because of the need to use communal

Kerkorian seeks mandatory relief without any mention of habeas

4

relief. See Petition at 1–2, 30, 73. Conversely, Amicus seeks habeas
corpus relief without any mention of mandamus. See Amicus at 12–14,
16, 24. As the Petitioner controls his case, this Answer responds to
Kerkorian’s specific mandamus relief request. Should this Court wish to
consider the Amicus’ attempt to change the relief sought, the State
respectfully requests an opportunity to provide supplemental briefing
following an appropriate order from the Court.
5 97 Nev. 601, 637 P.2d 534 (1981).

6
restrooms and unsanitary condition. In addition, it is undisputed that

Director Daniels has acted aggressively to initiate the recommendations

of the NDOC’s Medical Director to implement progressive, procedural

protective protocols. These protocols are based on CDC recommendations

and best medical practices. Instead of relying on these undisputed facts,

Kerkorian and Amicus rely on conclusory allegations, out of state case

law and developments, non–binding treatises, and policy preferences.

Further, as an appointee of the Governor, Director Daniels’ is tasked to

ensure the health and welfare of all NDOC inmates is protected on behalf

of the Governor. The Governor’s Office sought assurances before a state

of emergency was declared that NDOC was acting to protect its staff and

inmates. Those assurances were responded to in a progressive, proactive

manner.

Legally, the Governor is fully executing his discretionary duties.

Neither Kerkorian nor Amicus have pointed to any specific statutory or

constitutional provision being violated. And this is because there is no

such provision that exists. Because of their inability to point to any duty

the Governor is not faithfully executing, Kerkorian and Amicus turn to

discretionary decisions made by the federal government and sister

7
states—all of which were made based on discretion or duties given to

those sovereigns by their own laws—to argue that the Governor should

exercise his discretion in the same manner. The Governor is not bound

by these out of state laws. Nor is the Governor bound to reach the same

discretionary decisions reached by foreign leaders when decided how to

best protect Nevadans Instead, the Nevada Constitution and citizens

demand the Governor exercise his discretion under Nevada law.

The Governor is routinely exercising his discretionary emergency

under NEV. REV. STAT. 414. This has resulted in more than a dozen

emergency declarations being issued by the Governor. The fact that none

of the emergency declarations apply specifically to NDOC nor demand

the release of Kerkorian or other inmates does not establish either the

Governor’s failure to exercise his discretion or establish that it was

exercised in an arbitrary or capricious manner. Neither Kerkorian nor

Amicus can provide any evidence that the Governor’s decision to allow

Director Daniels and the medical staff at NDOC to protect the prison

population was done in an arbitrary or capricious manner.

The Governor and Director Daniels are working tirelessly to protect

all Nevadans, including incarcerated individuals. They are acting in a

8
quick and calculating manner. They must be permitted to continue to

exercise their best judgment in making these discretionary decisions.

No duty has been violated. Indeed, the exact opposite is true.

The Petition must be denied.

III. RESPONSE TO ROUTING STATEMENT

Kerkorian asserts this Court should retain jurisdiction.6 While the

State respectfully disagrees that NEV. R. APP. P. 17(a)(11–12) require this

Court to retain jurisdiction,7 the State agrees this is not a case

presumptively assigned to the Court of Appeals under Rule 8 17(b), and

that the Petition—but for the lack of factual development–could involve

a matter of statewide importance. The State therefore believes this case

may be assigned to either this Court or the Court of Appeals based on the

discretion of this Court taking into account “the workload of each court.” 9

6 Petition at 2–3.
7 Id.
8 “Rule” refers to the Nevada Rules of Appellate Procedure.
9 Rule 17(c).

9
 IV. MANDAMUS RELIEF IS DISCRETIONARY

Mandamus relief is an extraordinary remedy reserved for

situations when a court believes it must exercise discretion “to compel

the performance of an act which the law requires” a government official

to perform.10 Courts only appropriately exercise this discretion over a

coequal branch of government when (1) the government official

“manifestly abused or exercised” their discretion or exercised their

discretion “arbitrarily or capriciously,”11 or (2) in situations when the

government official has a clear duty “to perform a ministerial act.” 12

A discretionary act “‘require[s] the exercise of personal deliberation,

decision and judgment.’”13 “An arbitrary and capricious exercise of

10 Guzman v. Second Jud. Dist. Ct., ____ P.3d. ____, 136 Nev. Adv.
Op. 12, 2020 WL 1503239, * 2 (Nev., March 26, 2020) (emphasis added).
11 Id.
12 Gill v. State ex rel. Booher, 75 Nev. 448, 451, 345 P.2d 421 (1959);
see also State v. Eighth Jud. Dist. Ct. (Zogheib), 130 Nev. 158, 161, 321
P.2d 882, 884 (2014).
13 In re Montierth, 131 Nev. 543, 550, 354 P.3d 648, 652 (2015)
(quoting Pittman v. Lower Court Counseling, 110 Nev. 359, 364, 871 P.2d
953, 956 (1994)).

10
discretion is one founded on prejudice or preference rather than on

reason, or contrary to the evidence or established rules of law.”14

Courts abuse their discretion to require mandamus relief if they

attempt “to control the proper exercise of [the official’s] discretion or to

substitute the judgment of [the] court for that of the” government official

whose duty it is to exercise discretion.15

A “ministerial act” is “essentially clerical in nature.”16 Stated

another way, “‘[a] ministerial act is an act performed by an individual in

a prescribed legal manner in accordance with the law, without regard to,

or the exercise of, the judgment of the individual.’”17

14 Zogheib, 130 Nev. at 161, 321 P.3d at 884 (citing State v. Eighth
Jud. Dist. Ct. (Armstrong), 127 Nev. 927, 931-32, 267 P.3d 777, 780 (2011)
(quoting, Black’s Law Dictionary 119, 239 (9th ed.)))
15 Zogheib, 130 Nev. at 161 (citing Collier v. Legakes, 98 Nev. 307,
310, 646 P.2d 1219, 1221 (1982)).
16 In re Montierth, 131 Nev. at 550, 354 P.3d at 652 (quoting In re
Soares, 107 F.3d 969, 974 (1st Cir. 1997)).
17In re Montierth, 131 Nev. at 550, 354 P.3d at 652 (quoting
Pittman, 110 Nev. at 364, 871 P.2d at 956).

11
 V. STATEMENT OF UNDISPUTED FACTS18

A. THE STATE TOOK EARLY, ACTION TO PROTECT PRISONERS FROM

COVID–19

Beginning in February 2020, the NDOC—at the behest of the

Governor and NDOC Medical Director Michael Minev—took proactive,

progressive, and protective precautions to hopefully prevent, and if

necessary limit, the spread COVID-19 within NDOC facilities.

On February 29, 2020, Dr. Minev, emailed medical staff, deputy

directors and wardens seeking “a full inventory of protective equipment

at all” NDOC facilities, specifically referencing face masks, including N95

and other protective masks, “disposable gowns and booties, latex gloves,”

and “oxygen tanks.”19 The email also sought information regarding the

ability to house inmates in open areas of the institutions should the need

18
As contemplated in this Court’s April 7, 2020 Order, and as
further addressed infra at 44–50, this Court should not engage in fact
finding. Doc. 20-13091, at 2 (citing Round Hill Gen. Improvement Dist. v.
Newman, 97 Nev. 601, 604, 637 P.2d 534, 536 (1981)). Therefore, to the
extent this Court looks at the factual circumstances of this situation, the
Court should only look at undisputed, properly cited, and confirmed facts.
19Email from Dr. Minev, dated February 29, 2020 at 9:08 P.M.,
Respondents’ Appendix 000073.
For the remainder of this Answer, the Respondents’ Appendix will
be referred to as “RA” and all preceding 0’s will be deleted (RA 73).

12
arise to quarantine “dozens if not hundreds of individuals with suspected

infections.”20 The email also referenced the need to ensure that NDOC

has “enough bleach and Cavicide21 available to completely disinfect every

facility in the state.”22 Dr. Minev made clear the data was wanted as

proactive measure “given the speed with which this virus is infected []

surrounding states” and to ensure NDOC was ready due to the “logistics

of [its] facilities.”23

Dr. Minev sought these answers within two days of the Governor’s

Chief of Staff requesting the information from the NDOC so the

Governor’s Office could determine NDOC’s state of preparedness.24 At

20 Id.
21 Cavicide is an intermediate-level surface disinfectant that is effective
against TB, HBV, HCV, viruses (hydrophilic and lipophilic), bacteria
(including MRSA and VRE) and fungi. See https://www.metrex.com/en-
us/products/surface-isinfectants/cavicide, last accessed April 7, 2020; see also
https://www3.epa.gov/pesticides/chem_search/ppls/046781-00012-
00171002.pdf, last accessed April 7, 2020.
22 RA 73.
23 Id.
24 RA at 75–76; see also RA 60 at ¶ 3.
Several declarations in Respondents’ Appendix were prepared the
week of April 3, 2020 to respond to a preliminary injunction before the
Hon. Richard W. Boulware in the United States District Court of Nevada.
These documents were all signed under oath and have been used in this
Response as they provide relevant, undisputed information. Should the

13
that time, the Nevada Department of Health and Human Services

(DHHS), based on information provided by the Center for Disease

Control (CDC), continued to “believe the immediate risk to the public in

Nevada, and nationwide, continue[d] to be low.”25

On March 2, 2020, Chief of Nursing Services, Theresa Wickham,

sent an email advisory “to all NDOC employees” regarding the

coronavirus.26 That email contained a CDC advisory educating the NDOC

employees and all patients (e.g., the inmates) as to what COVID-19 is,

how it is spread, and what preventive measures to take “to help prevent

the spread.”27

On the same day, Christina Leathers, NDOC’s Human Resources

Chief, sent an all employee bulletin via email noting “NDOC has been

actively monitoring the progress and status of the Coronavirus” and that

Court wish to have a declaration specific to this case, Respondents will

provide such Declarations upon the Court’s request.
25 RA 76.
26 RA 70–72; RA 43-44 at ¶ 2; RA 60 at ¶ 3.
27 RA 71–72.

14
the Emergency Response Manual referenced in AR 107.2.N, § XIV,

Medical Emergencies,28 should be utilized by all institutions.29

The employee bulletin also noted that NDOC had developed a

protocol that included:

(1) educating the employees, inmates, visitors

and contractors through the use of email and
preventive posters;

(2) ensuring that medical staff would above N95

makes as appropriate;

(3) access to clinical masks as appropriate;

(4) the need to wash hands for a minimum of

twenty (20) seconds and access to non-latex
gloves;

(5) the need to sanitize all contact surfaces with

a 10% bleach concentration “immediately
following any outside contact;” and

(6) the screening of incoming and outgoing

employees at shift changes and inmates
during train-in/out.30

28 RA 1–3; RA 40–41 at ¶ 3.
29 RA 68–69; RA 40–41 at ¶ 3.
30 Id.
Due to the importance of this issue, Chief Leathers re-sent her
March 2, 2020 email to all staff on March 13, 2020. See RA 62–63.

15
 Finally, the email contained a link to the CDC poster, entitled Stop

the Spread of Germs, with instruction that the information be posted “in

all areas visible for employees, inmates, visitors and contractors,

including restrooms, housing units and public areas.”31

Also on March 2, 2020, Dr. Minev instructed all “individuals or

inmates with symptoms of suspected coronavirus infection” be asked

whether they had traveled to Italy, South Korea, Iran, China or Japan.

The CDC had previously specified that travel to those countries provided

a reason to take extra precaution.32

On March 16, 2020, following the “issuance of the Governor’s

emergency declaration,” Director Daniels reiterated and implemented

additional directives as the Governor’s deliberate actions “armed [NDOC]

with additional tools and the flexibility to respond and ultimately contain

COVID–19.”33 The policies included:

 suspending all inmate visitation;

 suspending in person attorney visits, and

taken steps to permit attorney visits by video

31 Id.
32 RA 66; RA 40–42 at ¶¶ 2, 7.
33 RA 79–80; RA 51 at ¶ 6.

16
 or telephone conference in lieu of in–person
conferences;

 hosting Town Hall meetings with staff and

inmates at each institution;

 symptom detection that include visual and

temperature checks, with anyone having a
100.3 or higher temperature being denied
entry;

 suspending all inmate access to the

community; and

 activating an Emergency Operation Center at

each facility.34

Deputy Director of Operations Harold Wickham provided

additional information regarding how the Emergency Operation Centers

(EOCs) were expected to be established and utilized.35 Staff was informed

that the EOCs must have both a land line and cell phone so information

regarding COVID–19 concerns would be relayed and received “in a timely

and accurate manner.”36 Deputy Director also informed everyone that the

EOCs are “are responsible for collection, documentation, recording and

distribution of information, instructions, contingency plans, and

34 Id.
35 RA 78; RA 48 at ¶ 4.
36 RA 78.

17
immediate communications up and down the chain of command.” 37 The

memo also noted that the executive team was “reviewing and developing

contingency plans at all levels for every possible scenario.”38

Deputy Director Wickham also required the town hall meetings to

take place two times per week.39 The purpose of the town hall meetings

is to ensure that there is no misinformation or inaccurate information

being disseminated.40

1. The Screening Procedures

On March 3, 2020, NDOC began screening staff, inmates and

vendors.41 Everyone is required to cooperate. Refusal requires denial of

entry.42 The screening requires all NDOC Employees, vendors or other

individuals entering an NDOC institution to have their temperature

taken and recorded upon entry into the gatehouse at all institutions.43

37 Id.
38 Id.
39 Id.
40 Id.
41 RA 53 at ¶ 6; RA 69; RA 40–41 at ¶ 3.
42 RA 81; RA 51 at ¶ 4; RA 53 at ¶ 5.
43 RA 43 at ¶¶ 5–6; RA 54 at ¶ 7; RA 79–82; RA 86.

18
Individuals must maintain a minimum of six (6) feet between them while

awaiting screening so as to ensure social distancing is maintained.44

In addition to temperature checks, employees are questioned about

symptoms they may be experiencing, such as fever, cough, shortness of

breath, wheezing, runny nose, etc. If these symptoms are observed,

employees are denied entry.45

On March 13, 2020—one day after the Governor issued his first

COVID–19 Declaration of Emergency46—Dr. Minev emailed an

important COVID-19 update to medical staff, executive staff, and all

wardens, directing that it be provided to all NDOC staff.47

In that email, Dr. Minev reminded all staff that NDOC was

“continuing to monitor all of [its] facilities with the most up to date

information from the CDC and local health districts.”48 Staff was

instructed to “IMMEDIATELY” email him, Chief Wickham, and Miguel

44 RA 53 at ¶ 5; RA 86 at ¶ 1; see also RA 65.

45 RA 86; see also RA 81; RA 51 at ¶ 4; RA 53 at ¶ 5.
46 See https://nvhealthresponse.nv.gov/news-resources/governor-
directives-and-declarations/, last accessed April 14, 2020; see also RA
128-133.
47 RA 64–65; RA 52-54 at ¶¶ 2, 7.
48 RA 64.

19
Forero, a disease specialist employed by NDOC, if they: (1) are

experiencing any flu like symptoms such as a “fever of 100.4 and above,

cough, sore throat, muscle aches, etc.,;” (2) “have come in contact with

any individuals with these symptoms or known COVID-19 infection;” or

(3) have “recently traveled to an area known to active COVID-19

infections.”49

To ensure there was no misunderstanding, this information was

reiterated on March 18, 2020. Specifically, Dr. Minev reminded everyone

that anyone with a temperature of 100.4 or above would “be sent home

and may receive additional evaluation.”50 Dr. Minev also made clear that

these were not suggestions, but a “DIRECT ORDER from Director

Daniels to ALL NDOC employees until further notice.”51

2. Isolation and Quarantine Procedures

Any staff member who has been seen by an outside medical

provider and tested for COVID-19 is quarantined for 14 days. They are

not permitted to return to work until there is a confirmed negative test

49 Id.
50 RA 81.
51 Id.

20
for COVID-19 and until the entire 14-day quarantine period is

completed.52

In addition, any employee or individual who exhibited any

symptoms during the screening process (temperature, dry cough,

shortness of breath, etc.) are denied entry, and must remain symptom

free for a minimum of 72 hours before being permitted entrance the

facility. Should an employee test positive for COVID-19, they are not

permitted to return to work until:

 they have completed 14-day quarantine;

 are symptom free for at least 72 hours; and

 a negative COVID-19 test is obtained.

This protocol applies to all individuals (inmates, employees or

vendors) that had prolonged close contact with the COVID-19 patient.

These protocols are based on CDC recommendations. 53

On April 2, 2020, Dr. Minev issued another all staff email for

purposes of reiterating the protocols that had been implemented.54 There,

52 Id.
53RA 16–37, 66, 84, 86–87; see also RA 44 at ¶ 9; RA 46 at ¶¶ 3–4,
6; RA 53–55 at ¶¶ 2, 10–11; RA 58–59 at ¶ 10; RA 70–72.
54 RA 86–87.

21
it was again noted that all employees must have their temperature taken

before entry, and that “[c]ustody staff will ensure that six (6) feet of

distance between employees is enforced during screening.”55

Any employee or vendor that exhibits one of the three most common

COVID-19 symptoms of high temperature, shortness of breath, or dry

cough will be considered a COVID-19 PUI, or Person Under

Investigation.56 Individuals who are uncooperative with the screening

process are not be permitted entry.57 This screening is not discretionary.58

To reiterate, the mandatory screening and preventive protocol is:

 requires all individuals who test positive for COVID-19 as

well as those who had potential close contact (anyone who has
been within six (6) feet of the positive patient for a prolonged
period of time)59 with them to be quarantined for fourteen (14)
days or until they are no longer sick, whichever time is longer;
and

 requires all individuals to be symptom free for 72 hours in

addition to the quarantine before being permitted to return to
work.60

55 Id.
56 Id.
57 Id.
58 RA 53 at ¶ 5.
59 Id.
60 RA 86–87; see also n. 53, supra at 21.

22
 These procedures are consistent with CDC recommendations

through April 2, 2020.61

On April 3, 2020, the CDC provided additional voluntary, general

recommendations to the public. Therefore, at 6:44 p.m. on April 3, Chief

of Nursing Theresa Wickham emailed the Directors of Nursing Services

(DONS) and Wardens the updated guidance issued that day from the

CDC. Specifically, the CDC “recommended everyone cover their mouth

and nose with a face covering when they have to go out in public.”62 Based

on that guidance, the NDOC mandated all staff involved in medical

screening and assessment “MUST wear masks.”63

Chief Wickham’s email also provided a screenshot photo of the CDC

recommendation, along with a link to the CDC website where the

recommendation could be located.64 Finally, because it was after hours,

Chief Wickham also texted the recipients to ensure that the information

61 Interim Guidance on Management of Coranavirus Disease

(COVID-19) in Correctional and Detention Facilities,
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-deten
tion/guidance-correctional-detention.html#prevention, last accessed
April 6, 2020; RA 17–27.
62 RA 45 at ¶ 2; RA 83.
63 Id.
64 RA 46 at ¶ 3; RA 83–85.

23
was known to them as soon as possible given that the email was sent in

the early evening on a Friday.65

The CDC guidance, entitled, Recommendation Regarding the Use of

Cloth Face Coverings, Especially in Areas of Significant Community–

Based Transmission,66 noted the purpose of the facial covering was to

protect others in the event the wearer is sick, not to protect the wearer

from contracting COVID–19.67 The guidance was “an additional,

voluntary public health measure.”68

The CDC further noted in its Frequently Asked Questions section

that the face covering should be worn when possible “in a community

setting” such as “grocery stores and pharmacies.”69 The public was also

informed that the “face coverings are especially important to wear in

public in areas of widespread COVID-19 illness.”70 COVID–19 is not

65 RA 46 at ¶ 3.
66 RA 38–39.
67 Id.
68 Id.
69 RA 9, Cloth Face Coverings: Questions and Answers.
70 Id.

24
widespread among the NDOC community; there are no positive tests of

COVID-19 within the NDOC prison population.71

The Governor’s Nevada Medical Advisory Team has echoed the

reasons for the face covering provided by the CDC: to “reduce the spread

of the virus from infected individuals . . . [that] don’t show any symptoms

at all and by wearing a face covering they can reduce the risk of spreading

the virus.”72

As the undisputed facts establish, NDOC has taken COVID–19 and

its potential spread seriously. So while not downplaying the seriousness

of potential spread, community settings in the civilian world are quite

different than community settings within an NDOC institution.

Namely, in the civilian world, individuals do not have any control

with whom they may come in contact. In the civilian world, there is no

reasonable way to ensure that one does not come in contact with an ill

person.

71 RA 46 at ¶ 7.
72 https://nvhealthresponse.nv.gov/wp-content/uploads/2020/04/04
.03-Guidance-on-Improvised-Facial-Coverings.pdf, last accessed April
15, 2020; RA 186-188.

25
 In contrast, NDOC controls who is permitted in each institution.

NDOC decides where individuals are permitted to be once inside the

institution. In addition, NDOC is able to—and has—put in strict

sanitization and protection protocols to (as much as possible) preclude

sick individuals from entering the institution or roaming from place to

place when in the institution. These aggressive screening steps cannot be

(or is not being) done in community settings outside NDOC.73

The CDC guidance of March 23, 2020 acknowledged the unique

circumstances of prisons, noting that “[a]symptomatic individuals under

routine intake quarantine (with no known exposure to a COVID-19 case)

do not need to wear face masks.”74 This is precisely what NDOC requires.

All inmates transferring into any NDOC facility, whether from another

NDOC facility or from outside the NDOC, are medically observed and

isolated from other inmates at the institution for a minimum of fourteen

(14) days. Each institution has specifically identified locations for these

observations. At Southern Desert Correctional Center, where Kerkorian

73 RA 46–47 at ¶¶ 5–6.
74 RA 32 (emphasis added); see also RA 45–36.

26
is housed,75 inmates are isolated in Unit 7 as part of this screening

process.76 Kerkorian is housed by himself in Unit 3.77

During this time, any symptoms that an inmate may have that are

consistent with a potential COVID-19 infection, result in the inmate

being quarantined from the other inmates until such time as COVID-19

can be ruled out. At SDCC, the inmates are removed from Unit 7 and

observed in the medical building until they are symptom free. 78

Thus, NDOC is complying with the most specific guidelines relating

to correctional institutions, and supplementing those guidelines as

appropriate with the general guidance regarding face coverings provided

in the April 3, 2020 guidance.

3. The Sanitization Procedures

Warden Howell, who oversees SDCC,79 requires the cleaning of the

following areas using the mandatory sanitizing procedures as follows:

 once every two hours within the housing

units and entry doors;

75 RA 124.
76 RA 43 at ¶ 6; RA 46 at ¶ 6; RA 54 at ¶ 8; RA 58 at ¶ 10.
77 RA 124.
78 RA 43 at ¶ 6; RA 46 at ¶ 6; RA 54 at ¶ 8; RA 58 at ¶ 10.
79 RA 56 at ¶ 1.

27
  after each use of the gym and dining; and

 once an hour by the maintenance staff and in

maintenance areas.80

In addition to these COVID-19 sanitization procedures, SDCC staff

and inmates are required to comply with general health, hygiene, and

sanitization protocols of Operational Procedure (OP) 490.81

As evidenced by § 490.02(1) of OP 490, “[i]t is the responsibility of

all staff directly involved in supervising a shop, housing unit or any other

area . . . to maintain constant surveillance of that area to ensure

acceptable sanitization practices are followed on a daily basis.”82 Staff are

also empowered to provide “appropriate protective clothing . . . should

reasonable precautions dictate the use of such clothing.”83 Inmates are

expected and required to assist in these cleaning efforts by “maintain[ing]

sanitary conditions, personal hygiene, and cleanliness,” which includes

using the “cleaning equipment or material issued to them.”84

80 RA 58 at ¶¶ 7, 9.
81 OP 490 is located at RA 107–121; RA 58 at ¶ 8.
82 RA 58 at ¶ 8; RA 108.
83 Id.
84 Id.

28
 The amount, type, and frequency of cleaning supplies at SDCC are

generally described in Operational Procedure (OP) 211B.85 Section

211.04 notes the cleaning supplies are ordered on a weekly basis.86 The

supplies are then issued either weekly, bi-weekly, or monthly depending

on “various factors, including population in the housing area[].”87 The

delivery and issue schedule is included as Attachments E and F.88

The following supplies are routinely available for cleaning:

 Brooms  Liquid Hand Soap

 Brushes
 Mops (2/wk)
 Dust Pans
 Scouring Pads (3 cases/wk)
 Sponges (3 cases/wk)
 Gloves (200/wk)
 Hand Soap
 Touch Free Soup Dispensers
 Ajax (2 cans/wk)
 Bleach (50% diluted; 1 gal/wk)
 All Purpose Cleaning Paks
(70/wk)
 Paper Towels (5 Bundles/wk)
 Floor Cleaner
 Bathroom Cleaner
 Disinfectant (1 gal/wk)
 Peroxide Cleaner
(½ gal/wk)
 Vinegar (½ gal/wk)
 Stainless Steel Cleaner
 Lemon–Up
 Lime A Way
 Neutral Cleaning Paks
 Dishsoap
 Soap (3 per inmate/wk)
 All Purpose Cleaner
(2 gals/wk)89

85 RA 92–106. RA 204-211.
86 RA 96 at § 211.04(2).
87 RA 96 at § 211.04(3).
88 RA 104–106.
89 RA 94 at § 211.01(5); RA 100–101, 104–106.

29
 One such routine cleaning supply is bleach, which is provided to the

housing units as a 50% diluted solution90 (which is stronger than the

minimum 10% bleach recommendation reminder sent on March 2,

2020).91 In addition to diluted bleach, § 211.04(5) provides that spray

bottles of all–purpose cleaner are made available to the inmates. 92 The

showers and common restrooms are also disinfected with an acid based

bathroom cleaner on a weekly schedule.93

Since the global pandemic, SDCC has increased cleaning supplies

in the units and authorized staff to issue upon request as needed.94 The

unit officers are aware that should inmates run low on cleaning supplies

they are to ask the cleaning/chemical supply officer in their unit or area,

and more supplies will be provided.95

This edict to provide additional cleaning supplies not only applies

to cleaning supplies for the inmates living quarters, but also to personal

90 RA 96 at § 211.04(3).
91 RA 68–69; RA 40–41 at ¶ 3.
92 RA 97 at § 211.04(5).
93 Id. at § 211.04(6).
94 RA 199-206
95 Id.

30
hygiene. Warden Howell has instructed that inmates at SDCC be

provided double the usual weekly amount of hand and body soap provided

to inmates. He has also authorized staff to provide more hand soap to the

inmates should the double amount not be sufficient for the inmate’s

needs.96

Further, as of April 8, 2020, the NDOC has authorized the use of

hand sanitizer for all inmates, free of charge.97 While the sanitizer was

originally going to be provided to all inmates to keep on their person,

after the sanitizer was handed out, several inmates drank the sanitizer

due to the alcohol content. This resulted in the inmates being not only

drunk, but sick.98 However, wanting to continue to provide access to

hand sanitizer for those that want to use it appropriately, NDOC offers

a limited amount to each inmate to use in the presence of a correctional

officer.99

96 Id.; RA 90; RA 57 at ¶ 6.
97 RA 49 at ¶ 5; RA 213 at ¶ 3.
98 RA 211-215.
99 Id.

31
 4. Inmate Education Procedures

Each institution has ensured that the information Chief Leathers

issued on March 2, 2020 has been disseminated to the prison

population.100 At SDCC, Warden Howell reminded the inmates of the

COVID–19 precautions by requiring a coronavirus memo be posted in

conspicuous areas at housing units.101 As the date of this filing, the memo

remains posted in all the housing units, including Kerkorian’s. 102 In

addition to the memo, the information is provided to the inmates via the

closed circuit inmate television channel, where it runs on a continuous

loop.103

5. Kerkorian Is Housed Alone

Kerkorian currently resides on a lower bunk in Unit 3.104 He is

housed alone.105 Photographs of his cell make clear that he has his own

100 Id.
101 RA 91; RA 57 at ¶ 5.
102 RA 199-206; RA 125–126.
103 RA 57 at ¶ 4.
104 RA 124; RA 199-206.
105 Id.

32
toilet.106 His cell also has its own sink.107 He also has a television,108

giving him access to the closed circuit station providing patient education

regarding COVID–19 on a continuous loop.109 In addition, the memo is

affixed to Kerkorian’s housing unit’s office and day room windows. 110

B. THE GOVERNOR’S DISCRETIONARY AND DELIBERATE ACTIONS

The Governor—just as Director Daniels—has exercised deliberate

discretion to protect all Nevadans, including NDOC inmates. These

decisions include several emergency declarations and regulations. In

date order, the Governor exercised his discretionary duties to enact the

following emergency declarations relating to COVID–19:

1. March 12, 2020: The COVID–29 Emergency Declaration

In his first COVID–19 Declaration of Emergency,111 the Governor

acknowledged the significant health and safety concerns the COVID–19

106 RA 127.
107 RA 199-206.
108 RA 127.
109 RA 57 at ¶ 4.
110 RA 126; RA 204-211.
111 See https://nvhealthresponse.nv.gov/wp-content/uploads/2020
/03/Declaration-of-Emergency-re-COVID.pdf, last accessed April 15,
2020; RA 181-185.

33
pandemic would place on Nevada. He also specifically addressed his

constitutional authority to “declare an emergency.”112

The Governor then directed “all state agencies to” do what they

could “to “protect the health and safety of the persons in this state.”113 At

this time, the NDOC had already implemented numerous protective

protocols, including screening all individuals entering an NDOC

institution, as that screening began on March 3, 2020.114

The Governor’s 3/12/2020 Declaration ensured that NDOC, like all

other state agencies, would be able obtain emergency purchases through

the State Purchasing Division.115 These emergency purchases included

supplies, services, and equipment NDOC may need to combat COVID–

19.116

During his press conference announcing the Declaration of

Emergency, the Governor noted he had declared the emergency because

112 Id.
113 Id.
114 RA 53 at ¶ 6; RA 69; RA 40–41 at ¶ 3.
115 RA 134-136.
116 Id.

34
“it is [his] sworn duty as Governor to protect our citizens.”117 The

Governor also informed Nevadans that COVID–19 presents “different

and unique challenges not just every day, but multiple times a day,” and

that the Declaration of Emergency “is just the first of a series of actions

that will come from [his] office and our partners over the coming days

and weeks.”118

2. March 15, 2020: COVID-19 Emergency Directive 001119

The Governor exercised his emergency powers under NEV. REV.

STAT. 414 which permit him to “exercise all powers necessary to promote

and secure the safety and protection of the civilian population.”120 Based

on those emergency powers, the Governor exercised is discretion to close

all schools throughout Nevada.121

117 http://gov.nv.gov/News/Press/2020/Governor_Sisolak_Declares_
State_of_Emergency_in_Response_to_COVID-19/, last accessed April 15,
2020; RA 181-185.
118 Id.
119 http://gov.nv.gov/News/Emergency_Orders/2020/2020-03-15_-
_COVID-19_Declaration_of_Emergency_Directive_001/, last accessed
April 15, 2020; RA 137-138.
120 Id.
121 Id.

35
 3. March 18, 2020: Emergency Directive 002122

On March 18, 2020, the Governor again exercised his discretion to

take the unprecedented step of closing all casinos and requiring all other

locations to suspend any gaming activities permitted at those

locations.123

4. March 20, 2020:

a. Emergency Directive 003124

In instituting Emergency Directive 003, the Governor made specific

reference to the emergency powers codified in NRS 414.060, 414.070, and

414.090.125 The Governor explicitly noted that NRS 414.070 provides him

with discretionary “powers and duties as are necessary to promote and

secure the safety and protection of” all Nevadans.

It also referenced Attorney General Opinion 57–336 where it is

determined “[t]here can be no question but that the Legislature intended

122 See https://nvhealthresponse.nv.gov/wp-content/uploads/2020

/04/2020-03-18.Declaration-of-Emergency-Directive-002-re-Closing-Casi
nos.pdf, last accessed 4/14/2020; RA 139-140.
123 Id.
124 https://nvhealthresponse.nv.gov/wp-content/uploads/2020/03/
2020-03-20.Declaration-of-Emergency-Directive-003.pdf, last accessed
April 15, 2020; RA 141-145.
125 Id.

36
to give the Governor the broadest possible powers consistent with

constitutional government in a time of dire emergency.”126

b. Emergency Directive 004127

The Governor exercised his discretionary duties and power to

extend the expiration date of drivers’ licenses, vehicle registrations, and

business and occupational licenses for 90 days. The directive also

suspended various statutory responsibilities entrusted to the

Department of Motor Vehicles.128

c. Emergency Directive 005129

Emergency Directive 005 suspended or waived various educational

requirements.130

126 Id.; see also, 1957 AGO 57–336, RA 183-185.

127 https://nvhealthresponse.nv.gov/wp-content/uploads/2020/03/
Declaration-of-Emergency-Directive-004-re-DMV.3-20-20.pdf, last
accessed April 15, 2020; RA 146-148.
128 Id.
129 https://nvhealthresponse.nv.gov/wp-content/uploads/2020/03/
Declaration-of-Emergency-Declaration-005.3-20.20.pdf, last accessed
April 15, 2020; RA 149-152.
130 Id.

37
 5. March 22, 2020: Emergency Directive 006131

The Governor exercised discretion to suspend the physical location

requirement for public hearings under the Open Meetings Law, while

still providing public access through telephonic and electronic means. 132

6. March 24, 2020: Emergency Directive 007133

This declaration limited all gatherings to ten (10) or less individuals

except in circumstances where a household has more than ten

individuals.134

7. March 24, 2020: Emergency Directive 008135

The Governor used his discretionary emergency powers to suspend

residential evictions.136 Of particular interest here is the concerns the

131 https://nvhealthresponse.nv.gov/wp-content/uploads/2020/03/
Declaration-of-Emergency-Directive-006-re-OML.3-21-20.pdf, last
accessed April 15, 2020; RA 153-155.
132 Id.
133 https://nvhealthresponse.nv.gov/wp-content/uploads/2020/03/
Declaration-of-Emergency-Directive-007.3-24-20-1.pdf, last accessed
April 15, 2020; RA156-158.
134 Id.
135 https://nvhealthresponse.nv.gov/wp-content/uploads/2020/03/
Declaration-of-Emergency-Directive-008-re-Evictions.3-29-20.pdf, last
accessed April 15, 2020; RA 159-162.
136 Id.

38
Governor noted if people do not have adequate shelter during this

pandemic.137 Notably, the lack of shelter will increase the individuals

“vulnerability to transmission of COVID–19, which in turn increases the

general public health risk resulting from the spread of COVID–19.” 138

These concerns could apply to a released prisoner with equal force.

There is no guarantee a released inmate would have access to shelter—

especially without putting others at risk. Given the global pandemic has

now infected over 2,216,228 million individuals worldwide, and over 3,400

in Nevada,139 NDOC’s protective protocols do not place Kerkorian in a

situation of irreparable harm; arguably, they are keeping him safer than

non-institutionalized individuals.

This is especially true given Kerkorian’s lack of a roommate, access

to his own toilet and sink, and the photograph of his cell suggests he

practices safe and sound sanitary habits.140

137 Id.
138 Id.
139 See, n. 3, supra at 3.
140 RA 124, 127; RA 199-206.

39
 Specifically, since the last three weeks of March, all of which

coincide with the current State of Emergency, at least 79,285 Nevadans

have filed for unemployment.141 For the week ending April 4, 2020, there

are a total of 271,533 existing unemployment claims—more than all of

2018 and 2019 combined.142 Given these unprecedented unemployment

141 See https://www.rgj.com/story/news/2020/04/14/cares-act-pay

ment-nevada-unemployment-claims-website-stimulus/2991028001/, last
accessed April 15, 2020; RA 189-193.
142 Id.

40
numbers, it would be incredibly difficult for an inmate released at this

time to find gainful employment, find a residence, and be able to seek

medical attention if they require it once out.

8. March 31, 2020: Emergency Directive 009143

Similar to Emergency Declaration 004, the Governor extended the

renewal period of regulated business licenses. He also used his discretion

to extend the statute of limitations period for legal proceedings. 144

9. April 1, 2020:

Emergency Declarations 010,145 011,146 and 012147 were authorized.

143 See https://nvhealthresponse.nv.gov/wp-content/uploads/2020

/04/Directive-009.pdf, last accessed April 15, 2020; RA 163-164.
144 Id.
145 https://nvhealthresponse.nv.gov/wp-content/uploads/2020/04/
Declaration-of-Emergency-Directive-010-Stay-at-Home-3-31-20.pdf, last
accessed April 15, 2020; RA 165-167.
146 https://nvhealthresponse.nv.gov/wp-content/uploads/2020/04
/2020-04-01.Declaration-of-Emergency-Directive-011-re-Health-Care-
Providers.pdf, last accessed April 15, 2020; RA 168-171.
147 https://nvhealthresponse.nv.gov/wp-content/uploads/2020/04/
2020-04-01.Declaration-of-Emergency-Directive-012-re-Activation-of-
Nevada-National-Guard.pdf, last accessed April 15, 2020; RA 172-173.

41
 a. Emergency Declaration 010

Commonly referred to as a “Stay at Home Order,” extended the

state of emergency through April 30, 2020. In addition, it made clear that

“[w]ith limited exceptions . . . all Nevadans are ordered to stay in their

residences.” One exception was to permit outdoor exercise so long as

social distancing is maintained and it is only being done with other

household members.148

b. Emergency Declaration 011

This declaration helps ensure all Nevadans—including

incarcerated individuals—have access to medical professionals. The

Governor did this by exercising his discretion to waive “certain licensing

requirements to allow the practice of currently unlicensed skilled medical

professions during the pendency of COVID–19.”149

The waiver allows for medical professionals licensed in other states,

retired medical, and medical students to provide treatment.150 In

authorizing these individuals to augment Nevada licensed medical

148 See n. 145, supra at 41.

149 See n. 146, supra at 41.
150 Id.

42
professionals, the Governor again directly relied on NRS 414.070(6), (7)

so as to “promote and secure the safety and protection of the civilian

population.”

c. Emergency Declaration 012

The Governor activated the National Guard.151

10. April 8, 2020: Emergency Declaration 013152

Most recently the Governor used his discretionary powers to further

address what businesses and services could continue as essential services

during the COVID–19 pandemic state of emergency.

The Emergency Declarations discussed above establish the

Governor is wholly cognizant of the gravity this pandemic and placed on

his shoulders. The Governor’s wide–ranging decision making over a

multitude of topics, as well as the Governor’s willingness to add to,

amend, modify, and clarify the steps utilized under his emergency powers

provide undisputed factual evidence the Governor’s understanding of his

emergency powers, and the obligations and responsibilities bestowed

151 See n. 147, supra at 41.

152 https://nvhealthresponse.nv.gov/wp-content/uploads/2020/04/
Declaration-of-Emergency-Directive-013.4-08-20-2.pdf, last accessed
April 15, 2020; RA 174-177.

43
upon him. Kerkorian himself has admitted that these emergency steps

taken by the Governor are “commendable.”153

VI. ARGUMENT AS TO WHY MANDAMUS IS NOT PROPER

Mandamus is not proper for at least three reasons.

First, Kerkorian’s allegations require this Court to engage in a

factual determination. Such factual determinations should not be decided

by this Court.

Second, the Governor and Director Daniels’ actions to insulate

inmates from COVID–19 are not ministerial actions, but deliberate,

defined, and detailed decision exercised in conformity with their

discretionary duties.

Third, neither the Governor nor Director Daniels has exercised

their discretion in an arbitrary or capricious manner. Instead, the

undisputed and unprecedented actions undertaken by the Governor and

Director Daniels establish that their discretion has been appropriately

exercised in a manner wholly consistent with the authority vested in

them by the Legislature.

153 Petition at 73.

44
A. KERKORIAN’S ASSUMPTIONS ARE TO FACT-FOCUSED FOR THIS
COURT TO GRANT RELIEF

This Court has specifically ordered the State to “address the

propriety of writ relief in this matter, including but not limited to

whether the petitioner properly seeks relief before this court, as opposed

to the district court.”154 Specifically, this Court has inquired as to

whether Kerkorian’s request should be brought before the district court

due to Kerkorian’s reliance on numerous factual allegations.155

The State agrees with the Court’s initial concern in this regard.

The lower court docket confirms Kerkorian never sought this relief

before the lower court.156 And while Kerkorian could properly seek this

relief before this Court that is only true to the extent he seeks a decision

based on a discreet legal or equitable issue that does not require factual

development.

In Round Hill Gen. Improvement Dist. v. Newman,157 this Court

held that while it has “discretion to enter a petition for a writ of

154Order Directing Answer at 1 (citing Round Hill, 97 Nev. at 604,

637 P.2d at 536).
155 Id.
156 RA 4–8.
157 97 Nev. 601, 637 P.2d 534 (1981).

45
mandamus when important public interests are involved,” that discretion

“will not be exercised unless legal, rather than factual, issues are

presented.”158

Kerkorian provided this Court with thirty–nine (39) pages of

allegations, analogies, and anecdotes.159 In so doing, many statements

were made without any citation to documents that can be judicially

noticed. For example, on page 17 of the Petition Kerkorian states

(without citation to any authority) that

it is virtually impossible to achieve social

distancing in the prison or jail setting. Inmates
share toilets, sinks, showers, eat in cafeterias and
often have limited access to soap, hot water, and
other necessary hygiene items. Prisons are
remarkably unsanitary. Prison staff also enter and
exit prisons daily to go home to their communities.
Prison staff are essential employees, and with
inadequate infection screening procedure, the
spread of COVID–19 within Nevada’s prison
system is inevitable.[160]

This bald–face assertion demands discovery and factual

investigation before it can be relied on. This is particular true given the

158Id. (citing State v. ex rel. List v. County of Douglas, 90 Nev. 272,

524 P.2d 1271 (1974)).
159 Petition at 3–42.
160 Petition at 17 (emphasis).

46
undeniable and undisputed sanitation and cleaning protocols NDOC has

in general, all of which have been enhanced during this COVID–19

pandemic.161 The statement is also called into question given Kerkorian’s

housing arrangement and clean cell as exhibited in the contemporaneous

photographs attached.162

Next, Kerkorian relies on a fifteen (15) year old law review article

for the assertion that “[p]risons and jails serve as ‘epidemiological

pumps.’”163 This general assertion is not only outdated, but conclusory.

And while Kerkorian might be able to establish a prison or jail

somewhere that supports this conclusion, the undisputed evidence

relating to NDOC institutions in general, and Kerkorian housing location

specifically, undercuts this decade old generalization.

Further contradicting Kerkorian’s legal treatise is the CDC’s

failure to list correctional institutions as an environment that is higher

risk for COVID–19 illness than the general public. As of the date of this

See supra at 27–31; see also RA 56–58 at ¶¶ 1, 6–7, 9–10; RA 90;

161

RA 92–121.
162 RA 124, 126; RA 199-206.
163Petition at 17 (citing John Jacobi, Prison Health Public Health:
Obligations and Opportunities, 31 Am. J. L. and Med. 447 (2005)).

47
writing, the CDC has not explicitly included prisons or jails as a high risk

housing location that results in the entire prison population being at

higher risk for COVID-19. Rather, the CDC notes certain individuals

with underlying health conditions or age of at higher risk. The CDC also

specifically delineates “[p]eople who live in a nursing home or long-term

care facility”164 as a higher risk population.

Conversely, the CDC’s specific guidance relating to correctional

institutions does not list prisons as blatantly higher risk that other

communities.165 Instead, it lists certain criteria that make individual

inmates at higher risk. These criteria “include older adults and persons

of any age with serious underlying medical conditions, including lung

disease, heart disease, and diabetes.”166 The CDC’s decision to not

explicitly list prisons as a whole as being higher risk suggests that the

CDC realizes that no two prisons are the same, and that factual

determinations are necessary to decide whether a particular prison puts

an individual at higher risk.

164 https://www.cdc.gov/coronavirus/2019-ncov/faq.html#Higher-
Risk, last accessed April 14, 2020; RA 14.
165 RA 17–37.
166 RA 29; see also RA 14.

48
 The CDC acknowledges that incarcerated individuals have a

“higher prevalence of infections and chronic diseases . . . than the general

population.”167 However, there is no evidence that this applies to the

inmates at SDCC generally or Kerkorian specifically . Kerkorian noted—

without providing medical records—that he suffers from “high blood

pressure” and “psoriasis.”168 Even assuming this is true, these are not

health conditions listed by the CDC at putting Kerkorian at a higher risk,

Kerkorian makes no reference to required medication for his high blood

pressure.169

Kerkorian’s medical condition is certainly a consideration to take

into account when determining his overall susceptibility to COVID–19.

However, without any medical records or factual development as to his

current state of health, and his failure to even reference an underlying

health condition the CDC has flagged as being a higher risk, this Court

cannot make a well–reasoned factual determination. And that is why this

Court correctly referenced Round Hill in its Order Directing Answer. In

167 RA 29.
168 Petition at 41–42; see also Appx. at 071 (PSI Report).
169 Id.

49
short, because Kerkorian seeks release due to his alleged “extremely high

risk of death from COVID–19,”170 additional discovery and fact finding is

required, and Round Hill applies.

Accordingly, the Petition does not involve a pure legal issue ripe for

this Court’s review. Instead, Kerkorian relies on factual assertions and

allegations in an attempt to gain his freedom. While he is free to do so,

the district court is the appropriate judicial body to hear his allegations

in the first instance.

B. EVEN ASSUMING THIS CASE IS RIPE FOR CONSIDERATION, THE

PETITION FAILS ON THE LEGAL MERITS

Assuming this Court believes that it may exercise its discretion to

decide this case despite the lack of any factual development in an

appropriate district court, the legal questions still require the Petition to

be denied.

As noted above, mandamus is an extraordinary remedy reserved for

situations when a court believes it must exercise discretion “to compel

the performance of an act which the law requires” be performed.171

170 Petition at 41–42.

Guzman, 136 Nev. Adv. Op. 12, 2020 WL 1503239 at * 2
171

(emphasis added).

50
Courts only appropriately exercise this discretion over a coequal branch

of government when (1) the government official “manifestly abused or

exercised” their discretion or exercised their discretion “arbitrarily or

capriciously,”172 or (2) in situations when the government official has a

clear duty “to perform a ministerial act.”173

As the undisputed statute and facts establish, neither of these two

situations is present.

1. BECAUSE NEITHER THE GOVERNOR NOR DIRECTOR

DANIELS FAILED TO PERFORM A MINISTERIAL ACT,
MANDAMUS RELIEF CANNOT BE GRANTED

A “ministerial act” is “essentially clerical in nature.”174 Stated

another way, “‘[a] ministerial act is an act performed by an individual in

a prescribed legal manner in accordance with the law, without regard to,

or the exercise of, the judgment of the individual.’”175

172 Id.
173Gill, 75 Nev. at 451, 345 P.2d 421; see also Zogheib, 130 Nev. at
161, 321 P.2d at 884.
174 In re Montierth, 131 Nev. at 550, 354 P.3d at 652 (quoting In re
Soares, 107 F.3d at 974).
175In re Montierth, 131 Nev. at 550, 354 P.3d at 652 (quoting
Pittman, 110 Nev. at 364, 871 P.2d at 956).

51
 Here, there is no question the decision to exercise or not exercise

emergency powers is not ministerial. This is conceded by Kerkorian

when he proclaims the “Governor of Nevada has broad emergency duties

and powers when a state of emergency has been declared.”176

When a commonly used word is not defined in a statute, it is

appropriation to “consult dictionary definitions” to ascertain “the plain

meaning” of the word in question.177 In this context, “broad” is defined as

“extending far and wide” or “relating to the main or essential points.”178

In addition to this definition, synonyms for “broad” include words such as

“comprehensive,” “wide-ranging,” “extensive,” “far-reaching,”

“expansive,” and “all-encompassing.”179 Such words clearly denote

something other than clerical, non–discretionary duty.

176 Petition at 47, § II. (bold and capitals omitted).

177 Okada v. Eighth Jud. Ct., 134 Nev. 6, 12, 408 P.3d 556, 571
(2018); Jones v. Nevada, State Bd. of Med. Exam’rs., 131 Nev. 24, 28, 342
P.3d 50, 52 (2015).
178 See https://www.merriam-webster.com/dictionary/broad, last
accessed April 14, 2020.
179 See https://www.thesaurus.com/browse/broad, last accessed
April 14, 2020; see also Microsoft Word Thesaurus (April 14, 2020).

52
 In addition, the use of the word “may” in a statute denotes

“permissive” action whereas the use of the term “shall” indicates

“mandatory” action.180

NEV. REV. STAT. 414.060(1), (2) and (3) uses the term “may” when

discussing what the Governor’s duties are under the emergency

management chapter.181 Section 414.070 similarly provides that “the

Governor may exercise the following additional powers” during a state of

emergency.182 Accordingly, Kerkorian cannot obtain mandamus relief

based on any alleged failure of the Governor or Director Daniels in not

performing a ministerial or clerical duty.

180Brewery Arts Ctr. v. State Bd. of Examiners, 108 Nev. 1050, 1054,
843 P.2d 369, 372 (1992); see also Canape v. State, 109 Nev. 864, 897–98
n. 8, 859 P.2d 1023, 1045–46 n. 8 (1993) (comparing the difference
between “shall” and “may” in a criminal statute).
181See NEV. REV. STAT. 414.060(1) (“The Governor is responsible …
and may assume”); NEV. REV. STAT. 414.060(2) (“The Governor may
cooperate with the Federal Government” or other state governments and
private entities); NEV. REV. STAT. 414.060(3) (“In performing his or her
duties under this chapter and to effect its policy and purpose, the
Governor may”) (emphasis added).
NEV. REV. STAT. 414.070 (“During the period when a state of
182

emergency or declaration of disaster exists or continues, the Governor

may exercise the following additional powers”).

53
 2. BECAUSE NEITHER THE GOVERNOR NOR DIRECTOR
DANIELS EXERCISED THEIR DISCRETIONARY DUTIES IN
AN ARBITRARY OR CAPRICIOUS MANNER, MANDAMUS
CANNOT BE GRANTED

a. The Undisputed Facts Establish Deliberate

Decision Making By the Governor and
Director Daniels

Kerkorian is also unable to show any arbitrary or capricious

conduct in the exercise of the Governor and Direct Daniels’ discretion.

To reiterate from above, a discretionary act “‘require[s] the exercise

of personal deliberation, decision and judgment.’”183 Here, there is no

question that the Governor’s decision to invoke his emergency powers

and Director Daniels’ decisions to promulgate protective protocols at

NDOC are decisions of “personal deliberation, decision and judgment.”

Kerkorian is therefore required to establish that the discretionary

acts of the State were arbitrary and capricious. This necessitates

Kerkorian to prove the decisions of the Governor and Director Daniels

183 In re Montierth, 131 Nev. 543, 550, 354 P.3d 648, 652 (2015)
(quoting Pittman, 110 Nev. at 364, 871 P.2d at 956).

54
were “founded on prejudice or preference rather than on reason, or

contrary to the evidence or established rules of law.”184

Here, a review of the multiple emergency declarations implemented

by the Governor, as well as the far-reaching and ever-evolving screening

and sanitation procedures put in place by Director Daniels, based on the

sound medical recommendations of Dr. Minev, establish the lack of any

arbitrary or capricious determinations. Rather, the emergency

declarations set forth specific and quantifiable reasons as to why the

Governor decided to enact them. In addition, the NDOC protective

protocols are based on the sound medical judgment of Dr. Minev, Chief

Wickham, and their medical team. The protocols are also consistent with

CDC recommendations.

While Kerkorian seeks to have this Court force the Governor to

release him and other inmates, he cannot provide any evidence that the

Governor’s decision up to this point to not release criminals is arbitrary

or capricious. Indeed, as the New York Times reported on April 15,

184Zogheib, 130 Nev. at 161, 321 P.3d at 884 (citing Armstrong, 127
Nev. at 931-32, 267 P.3d at 780)

55
2020,185 there are real societal concerns with releasing inmates to the

public, even if the inmate was convicted of non-violent crimes or, or as in

Kerkorian’s case, crimes against animals as opposed to humans.186

On the contrary, the undisputed facts establish that NDOC

implemented screening procedures and safeguards relating to COVID–

19 nearly two weeks before the Governor declared a state of emergency.

The undisputed evidence also reveals the Governor’s office was in close

contact with the NDOC regarding COVID–19 preparedness at the time

NDOC started to implement its protective protocols.187

b. The United States District Court of Nevada Has

Rejected a Similar Plea for Release

While not binding, on April 9, 2020, the United States District

Court of Nevada was faced with a motion for a temporary restraining

order (TRO) filed by an immigration detainee being held at the

Henderson Detention Center.188 There, the Federal Court dismissed the

185 See https://www.nytimes.com/2020/04/15/us/florida-inmate-

coronavirus-murder.html, last accessed April 15, 2020; RA 194-198.
186 See Appx. 16.
187 RA 75–76.
188 Ramirez v. Culley, No. 2:20–cv–00609–JAD–VCF, 2020 WL
1821305 (D. Nev., Apr. 9, 2020). For ease of reference, a copy of this
opinion is contained in the RA at 207-210.

56
TRO because the detainee could only demonstrate “a speculative risk of

harm.”189

In seeking release, the detainee argued, like Kerkorian here, “that

his health conditions make him particularly vulnerable to severe illness

or death if infected by the COVID–19 virus.”190 The detainee also argued,

as does Kerkorian here, “that the ‘conditions of [] detention facilities pose

a heightened public health risk for the spread of COVID–19.”191 In

particular, the detainee alleged that his release was necessary because:

 detainees cannot practice proper social distancing

because of the close quarters they live in;

 detainees cannot practice proper hygiene because they

use communal toilets, sinks and showers that are not
disinfected between each use;

 “food preparation and service is communal with little

opportunity for surface disinfection;” and

 staff come and go from the facility “with limited ability

to adequately screen staff for new, asymptomatic
infection.192

189 Id. at * 1.
190 Id.
191 Id.
192 Id.

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 A TRO, like mandamus, is “‘an extraordinary remedy that may only

be awarded upon a clear showing the plaintiff is entitled to [] relief.’”193

In denying the TRO, the Federal Court held the detainee’s claim of

“an unsafe condition” was speculative.194 Namely, the Federal Court

noted that the respondents’ declarations averred “that no [] inmate,

detainee, or employee ha[d] tested positive for COVID–19.”195 Here, while

a handful of NDOC employees system wide have tested positive (with one

positive test at SDCC), no inmates have tested positive.196 The Federal

Court also took into account the screening and sanitation safeguards that

had been put in place. These safety measures include:

 temperature checks and health screening questions of

all employees before their shift starts;

 the use of personal protection equipment by staff

interacting with inmates;

 screening of all incoming inmates/detainees by a nurse,

with the possibility of quarantining;

193Id. at *2 (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008) and Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.
2009)).
194 Ramirez, 2020 WL 1821305 at *2.
195 Id. at * 2.
196 RA 211-216.

58
  increased cleaning of the housing and dayroom areas;

 suspension of all in-person visits except attorney visits;

 the suspension of volunteers of third party entries; and

 educating the detainees about COVID–19, including the

importance of proper hygiene.197

Similarly, here: (1) the NDOC has implemented strict screening

procedures of all employees and inmates entering the facility; (2) require

new inmates to be isolated/quarantined from other inmates for a

minimum of 14 days; (3) ensuring social distancing during the screening

procedures; (4) the use of masks/face coverings and gloves as appropriate;

(5) robust sanitization procedures in the housing units and common

areas; (6) inmate education; (7) extra cleaning and hygiene supplies; (8)

and the suspension of all in–person visitation, including attorney

visits.198

Thus, just as the Federal Court concluded “that there was no

evidence of a COVID–19 outbreak at the” detention center, the NDOC

has shown no outbreak within the prison population. Likewise, just as

197 Ramirez, 2020 WL 1821305 at *2–3.

198 See, e.g., supra at 18–27.

59
the detention center had established it had implemented “detailed

precautionary measures . . . to help protect the health and safety of”

detainees,199 the Governor and Director Daniels have shown they have

taken the substantially similar steps to protect the health and safety of

Kerkorian and all other NDOC inmates.

Accordingly, based on the undisputed record presented, it is clear

that neither the Governor nor Director Daniels have exercised their

discretion in an arbitrary or capricious manner. Kerkorian’s attempt to

have this Court usurp the Governor’s broad discretionary powers—

without any evidence establishing an individualized danger to him or

arbitrary and capricious decision by the Governor—is not proper.

The decisions as to what emergency actions to be taken is left solely

to the Governor under Nevada law. It is not proper for Kerkorian to ask

this Court to substitute its judgment for that of the Governor and

Director Daniels.200

The Petition must be denied.

199 Ramirez, 2020 WL 1821305 at *4.

200Zogheib, 130 Nev. at 161 (citing Collier, 98 Nev. at 310, 646 P.2d
at 1221).

60
 VII. CONCLUSION

The Governor and Director Daniels have exercised their discretion

based on sound medical judgment. Based on their proactive positions,

NDOC had implemented safety standard to combat COVID–19 before the

state of emergency was declared. Nothing since the state of emergency

being implemented calls into question the diligence of the Governor and

Director Daniels’ actions to protect the health and safety of all NDOC

inmates.

Kerkorian cannot establish that any action or decision of the

Governor or Director Daniels was arbitrary or capricious. In addition,

Kerkorian has failed to establish that his continued incarceration is

likely to result in serious harm or injury to him. As of the date of this

writing, no inmates have tested positive for COVID–19. Assuming an

inmate does test positive, the evidence is clear that NDOC has put protect

protocols in place to limit community spread.

Further, the Governor has shown that he will deliberately and

intentionally act in the best interests of all Nevadans. This includes the

possibility of enacting further emergency declarations or regulations.

Those decisions rest solely with the Governor.

61
The Petition must be denied.

DATED this 17th day of April, 2020.

Respectfully submitted:
AARON D. FORD
Attorney General

By: /s/ D. Randall Gilmer

D. Randall Gilmer (Bar No. 14001)
Chief Deputy Attorney General
Office of the Attorney General
555 E. Washington Ave., Ste. 3900
Las Vegas, NV 89101
702.486.3427
drgilmer@ag.nv.gov
Attorneys for Respondents

62
 CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the formatting

requirements of NRAP 32(a)(4), the typeface requirements of NRAP

32(a)(5) and the type style requirements of NRAP 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Office

Word 2013 in size 14 font in double spaced Century Schoolbook.

I further certify that this brief complies with the page- or type-

volume limitations of NRAP 32(a)(7) because, excluding the parts of the

brief exempted by NRAP 32(a)(7)(C), it is proportionately spaced, has a

typeface of 14 points or more, and contains 9,522 words.

Finally, I hereby certify that I have read this appellate brief, and to

the best of my knowledge, information, and belief, it is not frivolous or

interposed for any improper purpose. I further certify that this brief

complies with all applicable Nevada Rules of Appellate Procedure, in

particular NRAP 28(e)(1), which requires every assertion in the brief

regarding matters in the record to be supported by a reference to the page

and volume number, if any, of the transcript or appendix where the

matter relied on is to be found. I understand that I may be subject to

63
sanctions in the event that the accompanying brief is not in conformity

with the requirements of the Nevada Rules of Appellate Procedure.

DATED this 17th day of April, 2020.

Respectfully submitted:
AARON D. FORD
Attorney General

By: /s/ D. Randall Gilmer

D. Randall Gilmer (Bar No. 14001)
Chief Deputy Attorney General
Office of the Attorney General
555 E. Washington Ave., Ste. 3900
Las Vegas, NV 89101
702.486.3427
drgilmer@ag.nv.gov
Attorneys for Respondents

64
 CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing document

with the Clerk of the Court by using the electronic filing system on the

17th day of April, 2020.

I certify that the following participants in this case are registered

electronic filing systems users and will be served electronically:

W. Michael Horvath
Draskovich Law Group
815 S. Casino Center Blvd.
Las Vegas, NV 89101

Michael J. McAvoyAmaya
Michael J. McAvoyAmaya Law
4539 Paseo Del Ray Dr.
Las Vegas, NV 89121

/s/ Natasha D. Petty

An employee of the
Office of the Attorney General

65